Rajendra Kumar Hirawat (HUF), CHENNAI V. ITO Non Corporate Circle 9(5), CHENNAI

ITA 2509/CHNY/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 8330 (ITAT-CHENNAI)
• Duration Of Justice: 4 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 29-08-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: D ANAND

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, CHENNAI . . . , . !, # !$ BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI S. JAYARAMAN, ACCOUNTANT MEMBER ./ ITA NOS.2509 & 2510/CHNY/2018 & '& / ASSESSMENT YEARS : 2009-10 & 2014-15 SHRI RAJENDRA KUMAR HIRAWAT (HUF), NO.10, MONTEITH LANE, EGMORE, CHENNAI - 600 008. PAN : AAAHR 6716 A V. THE INCOME TAX OFFICER, NON-CORPORATE CIRCLE 9(5), CHENNAI. ()*/ APPELLANT) (+,)*/ RESPONDENT) )* - . / APPELLANT BY : SHRI D. ANAND, ADVOCATE +,)* - . / RESPONDENT BY : SHRI AR.V. SREENIVASAN, JCIT / - 0# / DATE OF HEARING : 01.01.2019 12' - 0# / DATE OF PRONOUNCEMENT : 02.01.2019 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER : BOTH THE APPEALS OF THE ASSESSEE ARE DIRECTED AGA INST THE RESPECTIVE ORDERS OF THE COMMISSIONER OF INCOME TAX (APPEALS)-10, CHENNAI, BOTH DATED 19.06.2018 AND PERTAIN TO ASSES SMENT YEARS 2009- 10 AND 2014-15. SINCE COMMON ISSUE ARISES FOR CONS IDERATION IN BOTH THE APPEALS, WE HEARD BOTH THE APPEALS TOGETHER AND DISPOSING THE SAME BY THIS COMMON ORDER. 2 I.T.A. NOS.2509 & 2510/CHNY/18 2. THE ONLY ISSUE ARISES FOR CONSIDERATION IS REJEC TION OF CLAIM OF THE ASSESSEE UNDER SECTION 10(38) OF THE INCOME-TAX ACT , 1961 (IN SHORT 'THE ACT'). 3. SHRI D. ANAND, THE LD.COUNSEL FOR THE ASSESSEE, SUBMITTED THAT THE ASSESSING OFFICER DISALLOWED THE CLAIM OF THE A SSESSEE UNDER SECTION 10(38) OF THE ACT ON THE BASIS OF THE INFORMATION S AID TO BE RECEIVED FROM THE INVESTIGATION WING OF THE DEPARTMENT AT KOLKATA . ACCORDING TO THE LD. COUNSEL, THE COPIES OF THE INVESTIGATION REPORT SAID TO BE RECEIVED FROM KOLKATA AND OTHER ENQUIRIES SAID TO BE CONDUCT ED BY THE ASSESSING OFFICER WERE NOT FURNISHED TO THE ASSESSEE. ACCORD ING TO THE LD. COUNSEL, THE ASSESSING OFFICER CLAIMS THAT ONE SHRI ASHOK KU MAR KALYAN AND SUNIL KUMAR KALYAN ARE PROVIDING BOGUS LONG TERM CA PITAL GAINS ENTRIES THROUGH PENNY STOCK COMPANIES. IT IS NOT KNOWN HOW THE COMPANIES IN WHICH THE ASSESSEE INVESTED ARE CONSIDERED TO BE PE NNY STOCK COMPANIES? THEREFORE, THE LD.COUNSEL SUBMITTED THA T THE MATTER MAY BE REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO FURNISH A COPY OF THE INVESTIGATION REPORT SAID TO BE RECEI VED FROM THE INVESTIGATION WING OF THE DEPARTMENT AT KOLKATA AND TO DECIDE THE ISSUE AFRESH THEREAFTER IN ACCORDANCE WITH LAW. THE LD.C OUNSEL HAS ALSO PLACED HIS RELIANCE ON THE ORDER OF THIS TRIBUNAL I N SHRI ARAVIND NANDLAL KHATRI IN I.T.A. NO.2035/CHNY/2018 DATED 03.12.2018 . 3 I.T.A. NOS.2509 & 2510/CHNY/18 4. WE HEARD SHRI AR.V. SREENIVASAN, THE LD. DEPARTM ENTAL REPRESENTATIVE ALSO. ADMITTEDLY, THE ASSESSING OFF ICER DISALLOWED THE CLAIM OF THE ASSESSEE ON THE BASIS OF THE INFORMATI ON SAID TO BE RECEIVED FROM THE INVESTIGATION WING OF THE DEPARTMENT AT KO LKATA WITH REGARD TO INVESTMENT MADE BY THE ASSESSEE IN THE PENNY STOCK COMPANIES. IT IS NOT IN DISPUTE THAT A COPY OF THE INVESTIGATION REP ORT SAID TO BE RECEIVED FROM KOLKATA WAS NOT FURNISHED TO THE ASSESSEE. MO REOVER, DETAILS OF THE ENQUIRIES SAID TO BE MADE BY THE ASSESSING OFFICER WERE ALSO NOT FURNISHED TO THE ASSESSEE. IN THOSE CIRCUMSTANCES, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE ASSESSING OFFICER HAS T O RECONSIDER THE ISSUE AFRESH AFTER FURNISHING THE MATERIAL RELIED UPON BY THE ASSESSING OFFICER. ACCORDINGLY, THE ORDERS OF BOTH THE AUTHORITIES BEL OW ARE SET ASIDE AND THE ENTIRE ISSUE IS REMITTED BACK TO THE FILE OF TH E ASSESSING OFFICER. THE ASSESSING OFFICER SHALL BRING ON RECORD THE ROLE OF THE ASSESSEE IN PROMOTING THE COMPANY AND THE RELATIONSHIP OF THE A SSESSEE, IF ANY WITH THE PROMOTERS, ROLE OF THE ASSESSEE IN INFLATING TH E PRICE OF SHARES, ETC. THE ASSESSING OFFICER SHALL ALSO FURNISH A COPY OF THE INVESTIGATION REPORT SAID TO BE RECEIVED FROM THE INVESTIGATION WING OF THE DEPARTMENT AT KOLKATA AND OTHER MATERIALS IF ANYTHING IN HIS POSS ESSION AND THEREAFTER DECIDE THE ISSUE AFRESH IN ACCORDANCE WITH LAW, AFT ER GIVING A REASONABLE OPPORTUNITY TO THE ASSESSEE. 4 I.T.A. NOS.2509 & 2510/CHNY/18 5. IN THE RESULT, BOTH THE APPEALS FILED BY THE ASS ESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 2 ND JANUARY, 2019 AT CHENNAI. SD/- SD/- (. !) ( . . . ) (S. JAYARAMAN) (N.R.S. GANE SAN) # / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 4 /DATED, THE 2 ND JANUARY, 2019. KRI. - +056 76'0 /COPY TO: 1. )*/ APPELLANT 2. +,)*/ RESPONDENT 3. / 80 () /CIT(A)-10, CHENNAI-34 4. PRINCIPAL CIT- 7, CHENNAI 5. 69 +0 /DR 6. :& ; /GF.